COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68758 State of Ohio, ex rel : Richard Blake : Relator : PETITION FOR WRIT OF : MANDAMUS -vs- : : Court of Common Pleas : Cuyahoga County, Ohio : Respondent : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 11, 1995 JUDGMENT : WRIT DISMISSED. DATE OF JOURNALIZATION : APPEARANCES: For relator: For respondent: L. James Martin, Esq. Sherry F. McCreary John H. Higgins, Esq. Assistant Prosecuting Attorney 4301 Darrow Road, #1300 The Justice Center Stow, Ohio 44224 1200 Ontario Street Cleveland, Ohio 44113 - 2 - Relator avers that he is the defendant in State v. Blake, Cuyahoga County Court of Common Pleas Case No. CR-45322. Relator's direct appeal from the sentence imposed in Case No. CR-45322 is currently pending before this court as Case No. 68348. Relator avers that, in 1979, the jury in Case No. CR-45322 found him guilty of aggravated robbery and not guilty of counts of aggravated robbery, felonious assault and robbery. Relator further avers that he "did not return to court to hear the jury's verdict *** and remained at large until 1994 ***." Complaint, at 2. During the intervening fifteen years: the stenographic notes taken during relator's trial were destroyed pursuant to an order of the court of common pleas issued in accordance with R.C. 2301.20(A) and (B); the trial judge died; the court reporter died. Additionally, the attorneys involved in the trial are unable to prepare either an App. R. 9(C) statement of the evidence or proceedings or an App. R. 9(D) agreed statement. In this action in mandamus, relator requests that this court: compel the production of a transcript; order reversal of his conviction if a transcript is unavailable; remand the matter to the trial court with a mandate to release relator on shock probation; or issue a mandate to the Adult Parole Authority to release relator on shock parole. Respondent has filed a motion to dismiss (Motion No. 62105) in which respondent cites State v. Jones (1994), 71 Ohio St.3d 293, 643 N.E.2d 547. Jones demonstrates that the concerns which relator - 3 - attempts to raise through this original action should be considered by this court in the exercise of its appellate jurisdiction. Accordingly, we grant the motion to dismiss. In Jones, bond was granted pending appeal after Jones had been convicted and sentenced on counts of rape, kidnapping, aggravated robbery and felonious assault. No appeal was filed and Jones was not returned to custody for more than eight years. Approximately two years after his arrest, Jones filed a motion for delayed appeal. This court granted the motion and appointed counsel. A transcript "could not be completed, because the notes of the court reporter had been properly destroyed." Id., at 294. Jones filed a motion for a new trial with the trial court because he was unable to create a trial record. After the trial court denied the motion for new trial, Jones filed a motion for new trial in this court. In the entry granting the motion for new trial, this court also reversed the judgment of conviction. The state appealed and the Supreme Court of Ohio reversed this court's judgment. The Supreme Court held that this court acted outside of its original jurisdiction by granting the motion for new trial. The Supreme Court also observed that "[a] criminal defendant must suffer the consequences of nonproduction of an appellate record where such nonproduction is caused by his or her own actions." Id., at 297. The case was remanded to the trial court to make a factual determination whether Jones was responsible for the nonproduction of the record and whether he should suffer - 4 - the consequences of nonproduction. Jones illustrates, therefore, that relator should address his concerns regarding the state of the record in his appeal--Case No. 68348. That is, relator's difficulties in preparing the record should be considered by this court in the exercise of its appellate jurisdiction not in the exercise of its original jurisdiction. Likewise, relator has failed to identify any authority for the proposition that this court may, in the exercise of its original jurisdiction, order relator's release by means of shock probation or shock parole. As a consequence, relator does not have a clear legal right to the relief requested. We note, however, that in reaching this conclusion we are not expressing any opinion regarding the issue of whether relator is responsible for the nonproduction of the transcript. Rather, our holding is that an original action in mandamus is not the appropriate proceeding for resolving the issues presented by relator's circumstances. Furthermore, relator failed to comply with Loc. App. R. 8(B)(1) which requires that complaints in original actions "be supported by an affidavit from the plaintiff or relator specifying the details of the claim." Although relator contends that other authority supersedes this requirement, we find his arguments unpersuasive. See, e.g., Hadlock v. McFaul (July 24, 1995), Cuyahoga App. No. 69228, unreported, at 2-3. Regardless, the discussion above indicates that relator's complaint fails to state - 5 - a claim upon which relief can be granted. Accordingly, respondent's motion to dismiss (Motion No. 62105) is granted. Relator to pay costs. Writ dismissed. LEO M. SPELLACY, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE .